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Charity Law Overview for Church of Scotland Congregational Office Bearers

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Charity Law Overview for Church of Scotland Congregational Office Bearers Charity Law Overview for Church of Scotland Congregational Office bearers Charity law is a complex subject but, as your congregation comprises a Charity, it is important that you and your fellow office bearers have a working knowledge of the duties which both the new statutory regime and the common law imposes on charity trustees. Why be a charity? The main advantage are of course the tax benefits. There is exemption from most of the burdens of taxation -- from income tax, corporation tax, capital gains tax, Stamp duty land tax etc but, sadly, only limited reliefs from VAT. Very important from the Church's point of view are tax recoveries made via Gift Aid and from tax on interest and investments. Secondly, there are various rating remissions which charities can claim -- although, in fact, the 100% rating remission which Church buildings and Church Halls receive is in terms of other legislation specifically for such property. Thirdly, being a charity provides an access route to receiving grants from both commercial bodies and from other grant-giving charities. The "charity brand" provides to donors an assurance that the money they give will be used in a good cause. The History To understand the current legislative provisions, it is necessary to know a little of the historical background. The notion of there being certain purposes worthy of legislative preference was first found in an English Act of Parliament dating from the time of Elizabeth the First which included in the list of good causes the repair of Church buildings. This was further developed in an English taxation case in 1891 which provided that "charity" in its legal sense comprised four charitable purposes or heads: the relief of poverty, the advancement of religion, the advancement of education and a more general category, namely purposes beneficial to the community, not falling under any of the preceding heads. In addition, the purpose had to be for the public benefit with this, however, being presumed to be the case in the first of the three heads. In England and Wales a body known as the Charity Commission was established to regulate charities and provide them with advice and guidance. No such equivalent body existed in Scotland and, as a result, it was left to the Inland Revenue to determine whether new bodies should receive charitable status and to try to monitor existing charities - which was done on a very haphazard basis. The Lord Advocate as the guardian of the public interest also had a role under the common law but, except in cases of blatant abuse, this was little exercised. Attempts were made to improve matters by the inclusion of a section on charities in the snappily titled Law Reform Miscellaneous Provisions (Scotland) Act 1990. This firstly introduced new accounting requirements. It also resulted in the Inland Revenue setting up a Charity index on which the names and contact details of charities was given. It was at this stage that Scottish Charity numbers were first issued. However, as no attempt was made to update the index, it was, at best, of limited use. The 1990 Act also gave the Lord Advocate and the Court of Session statutory powers to take action where misconduct or mismanagement was suspected. These powers included powers of 2 enquiry and to take steps via the Court to have those persons concerned in the management or control of the charity suspended and, where appropriate, permanently removed from exercising such functions. The Court was empowered to make orders restricting a charity from carrying out certain transactions. It could appoint a Judicial Factor to take over the management of the charity. Powers to disqualify from holding any office in any charity were also enacted. There was considerable alarm within the Church at the possibility -- albeit hopefully a remote one -- of office bearers and in particular ministers being suspended or indeed disqualified from holding office within the Church by authority of the State. Following lobbying with reference to the provisions of the Church of Scotland Act 1921, a compromise was reached by the creation of "designated religious body" status. The criteria for a body obtaining such status were set out as being: having the promotion of a religious objective as its principal purpose and its principal activity being the regular holding of Acts of public worship; being established in Scotland for not less than 10 years; having a membership of not less than 3000 persons resident in Scotland aged 16 years of age or more; and having the internal organisation so that one or more authorities in Scotland exercised supervisory and disciplinary functions in respect of the component elements of the body -- in particular -- as to the keeping of accounting records and auditing of accounts. Designated religious bodies were exempted from the regulatory provisions in the Act and from most of the accounting requirements. Following the passing by the General Assembly of new accounting regulations for both congregations and Presbyteries, the Church of Scotland was duly designated. The Scottish Charity office was established as a Division of the Crown Office to implement the provisions of the Act. When fully staffed, however, it consisted of three persons and, as a result, in the opinion of many, there remained a deficit in regulatory control so far as charities in Scotland were concerned. Such views prevailed and led to the passing of the Charities and Trustee Investment (Scotland) Act 2005, whose provisions mostly came into force in April 2006. The Position now The Act set up a statutory body corporate known as the Office of the Scottish Charity Regulator ("OSCR"). It confers on OSCR a number of key functions in relation to charities: to determine whether organisations should have charitable status; The Act contains a new legal definition of "charity" in Scotland. This is a two-stage test. Firstly the organisation has to have exclusively charitable purposes, there being 15 such purposes listed in the Act. The advancement of religion is one of these purposes. The organisation then has to demonstrate that it provides public benefit. The previous presumption of this in the case of some charitable purposes has been removed. When OSCR is deciding whether a body provides or intends to provide public benefit it has to have regard to the following (to quote the Act): The Church of Scotland - Scottish Charity No SC011353 3 (a) how any -- (i) benefit gained or likely to be gained by members of the body or any other persons (other than as members of the public) and (ii) disbenefit incurred or likely to be incurred by the public, in consequence of the body exercising its functions compares with the benefit gained or likely to be gained by the public in that consequence, and (b) where benefit is, or is likely to be, provided to a section of the public only, whether any condition on obtaining that benefit (including any charge or fee) is unduly restrictive. Clearly this is quite a difficult definition to administer and, although OSCR has issued guidance as to how it would intend to do so, only time will tell if any charities will lose their charitable status in Scotland. In practice, those charities that so far have been “tested” have “passed” although some, such as independent schools and charities connected with Councils/government have had to make changes to their constitutions or ways of working to retain their charitable status. to keep up a public Register of Charities; To be a charity operating in Scotland, the charity has to be listed on the new Register established by the Act and there are provisions to ensure that it is kept up-to-date. In practice, this means that there is a statutory obligation on charities to notify OSCR when details included in their entry change. The Register which can be searched and viewed on line on OSCR’s website (www.oscr.org.uk) and contains the following information for each charity : Its number, name, the address of its official correspondent, its constitutional form (which in the case of a congregation will be unincorporated association), annual return status, accounting period end date, gross income, geographical spread, main operating location, date entry last updated and its charitable purposes. The OSCR web-site is also a very useful resource for guidance of all aspects of the legislation. to encourage, facilitate and monitor compliance by charities with the provisions of the Act; From a practical point of view, OSCR largely monitors charities via the requirement that all charities have to lodge their Accounts and an Annual Return each year with it. to identify and investigate apparent misconduct (which is defined as including mismanagement) in the administration of charities and to take remedial or protective action; OSCR is given enhanced powers of supervision and intervention so that it can act effectively where it believes there is misconduct or mismanagement in the administration of a charity. It had transferred to it the powers previously vested in the Lord Advocate and, subject to a right of appeal, can even remove charities from the Register where it considers that the Charity no longer meets the charity test. Effectively, OSCR’s powers are limited to a period of six months and where action over a longer period is required, it has to ask the Court of Session to exercise the powers conferred on the Court under the Act. The Church of Scotland - Scottish Charity No SC011353 4 Charity trustees are defined in the Act as "the persons having the general control and management of the administration of the charity". Depending on the legal form the charity has, these can therefore be the board members, company directors, management committee members, trustees or whatever is relevant to the Charity.
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